This Petition for Review from the May 14, 1998 Finding and Dismissal of the Commissioner acting for the Second District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant has petitioned for review from the May 14, 1998 Finding and Dismissal of the Commissioner acting for the Second District. She argues on appeal that the trier erred by finding that her injury did not arise out of and in the course of her employment. We agree with the claimant’s contention that her claim was erroneously dismissed, and reverse the trial commissioner’s decision.

The claimant was employed as a data entry operator by the University of Connecticut on August 23, 1996. Her job was located on the main campus in Storrs at the Research Foundation, which occupies offices on the first floor of the Whetten Graduate Center building on Whitney Road. The claimant’s union contract entitled her to an unpaid lunch break during the middle of her shift, during which she was free to go where she chose. Though there was a shared kitchen area open for use by Research Foundation employees, food was not sold in the Whetten building, and the claimant often left the building during her lunch break. Her supervisor testified that the claimant had never been issued instructions with respect to lunch hour protocol. Findings, ¶ 26. The claimant stated that she normally took a walk on her break, stopped at Jonathan’s1 restaurant to pick up her lunch, and returned to the building to eat it. Jonathan’s is a fast-food restaurant located in the Student Union building on the UConn campus, about ¼-mile from the Whetten Graduate Center.

The claimant testified that, at approximately noon on the above date, she slipped and fell as she stepped up to the curb adjacent to Fairfield Road while en route to Jonathan’s. Consequently, she sustained an injury to her right elbow, which she reported to her employer upon returning to the Whetten building. Counsel for the state stipulated that the area in which the claimant fell and was injured is owned and maintained by the respondent employer UConn. January 8, 1998 Transcript, p. 3. However, the respondents argued that the site of the claimant’s accident should not be considered the employer’s premises for the purpose of this claim.

The trier issued a Memorandum of Law in conjunction with her findings, explaining that “there is no compelling reason to conclude that the place where claimant fell constituted part of the Employer’s premises . . . because that place was no more a part of her workplace than any state-owned road, curb or sidewalk is to any other state employee.” The trier reasoned that, unlike a maintenance worker, for example, whose job duties might encompass the entire campus area, this particular claimant only worked in one building, and the curb upon which she fell was foreign to the locale of her job duties. She also reasoned that there was no risk incidental to the claimant’s employment that led to this injury, as the claimant was not required to remain on campus for lunch, and could in fact have brought her own lunch from home. She concluded that the claimant “was not within the period of employment, was not paid during the time of her injury, and was not on the employer’s premises at the time of injury.” Relying on Spatafore v. Yale University, 239 Conn. 408 (1996), the trier therefore ruled that the claimant had failed to establish a compensable injury. The claimant has appealed that decision.

It is well settled that, in order to recover for an injury under the Workers’ Compensation Act, a claimant must prove that her injury is causally connected to her employment. Spatafore, supra, 417. In order to establish this connection, the claimant must satisfy a two-part test: she must demonstrate that her injury (1) arose out of her employment, and (2) occurred in the course of her employment. Id., 417-18; Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997). The latter requirement, which forms the central issue of this appeal, relates to the time, place and circumstances of the accident, while the former requirement concerns the origin and cause of the accident. Id., 792-93. Whether or not these elements of the test have been established is a question of fact for the trial commissioner, who must draw an inference from the subordinate factual findings to make that decision. Spatafore, supra, 418; LeBlanc v. Aramark Corp., 3693 CRB-2-97-9 (Nov. 24, 1998). “If said inference is supported by the evidence and [consistent] with the law, it cannot be set aside on appeal by a reviewing tribunal.” Id., quoting Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Although almost any workers’ compensation award contains numerous factual findings, the success or failure of a claimant’s case often hinges upon one particular inference that the trier has drawn. Here, the conclusion most vital to the trier’s dismissal of the instant case was her determination that the claimant’s injury did not occur upon the employer’s premises for the purpose of her compensation claim. This finding is highly relevant, because the criteria used in analyzing whether an injury occurred in the course of a claimant’s employment differ depending on whether or not the employer controls the property upon which the claimant is hurt. LeBlanc, supra; McNamara v. Hamden, 176 Conn. 547, 553 (1979). “Where . . . a lunchtime injury takes place on the employer’s premises, that injury may be said to have occurred ‘in the course of employment, even though the lunch interval is technically outside the regular hours of employment . . . .” Mazzone, supra, 794, quoting 1A A. Larson & L. Larson, Workmen’s Compensation (1996), § 21.21 (a), p. 5-6. Off-premises injuries during an unpaid lunch break, on the other hand, are considered outside the scope of employment unless it can be shown that the claimant’s actions benefited her employer in some manner. Spatafore, supra, 421.

Nominally, a trier’s conclusion that a claimant’s injury did not occur on an employer’s premises constitutes a finding of fact. Though such a categorization is technically accurate here, this “factual” finding is based solely on the trier’s analysis of the legal significance of undisputed subordinate facts, rather than her assessment of the credibility of the evidence. Compare Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998) (trier has authority to determine weight of evidence presented and credibility of testimony, even if apparently uncontradicted). The respondent stipulated that the “area where the claimant was injured . . . was owned and maintained by the employer, State of Connecticut, University of Connecticut,” as opposed to another state department. January 8, 1998 Transcript, p. 3. The commissioner nonetheless categorized the spot where the claimant fell as a “state-owned” curb accessible to the general public. She then reasoned that, because the claimant was a clerical worker whose duties were confined to one building on the UConn campus, the situs of the injury was not part of the employer’s premises for the purpose of this case. Having correctly noted that this issue was one of first impression in the State of Connecticut, the trier made a diligent effort to deduce the legal ramifications of the essentially undisputed facts.

Workers’ compensation law does not so narrowly circumscribe the contours of an employer’s business premises, however. This is especially true when one considers our Supreme Court’s admonition that “the humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation.” Herman v. Sherwood Industries, Inc., 244 Conn. 502, 511 (1998). At least one other jurisdiction has considered circumstances where an employee works for a college, and has held that the entire campus constitutes the premises for workers’ compensation purposes. See 1 A. Larson & L. Larson, supra, § 15.41 p. 4-100 to 4-102, discussingWarren’s Case, 326 Mass. 718, 97 N.E.2d 184 (1951).2 A few others have advanced more limited interpretations of “premises 4” in the college campus setting. See Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386 (1955); Salomon v. State, 250 Md. 150, 242 A.2d 126 (Md. App. 1968); see alsoHarris v. Workmen’s Compensation. App. Bd., 90 Pa. Commw. 483, 486 A.2d 87 (1985). We believe that the law in Connecticut favors a more inclusive interpretation of the word “premises” similar to that adopted by the Massachusetts court in Warren’s Case, supra, rather than the more restrictive notion of “premises” adopted by some of its sister states.

This board stated in LeBlanc, supra, that “[f]or the purposes of a workers’ compensation claim, we have used ‘premises’ to refer to any area that is under the care, custody or control of the employer.” Additional restrictions based on the locus of the claimant’s job duties are not generally factored into the definition of “employer premises.” Rather, they are considered with respect to a different facet of the “in the course of the employment” test: whether the employee was in a place he could reasonably have been when he was injured. See Mazzone, supra, 796. Here, the respondent stipulated that the area in which the claimant fell was owned and maintained by UConn, the claimant’s employer. We also note that neither party has cited any evidence indicating that the Research Foundation should not be considered a part of the university under the definition of “employer” in § 31-275(10).

Against that factual backdrop, our delineation of the concept of “premises” is strongly influenced by the Mazzone opinion. In that case, a mechanic eating his lunch in an unoccupied, out-of-service bus parked on his employer’s premises fell while descending the rear steps of the bus, suffering an injury. He and several co-workers were on their unpaid lunch breaks at the time, and (as was their custom) they had opted not to eat their midday meals in the small lunchroom that the employer provided for its staff. Reversing the decisions of both the trial commissioner and this board, our Supreme Court held that, as a matter of law, the claimant’s injury occurred within the period of his employment, even though he was on an unpaid break and had “punched out” on the time clock. The Court also held (contrary to this board’s decision) that the activity of eating lunch was incident to the claimant’s employment, as “[i]t would be illogical to hold that, if they occur on the employer’s premises, injuries related to such employer sanctioned activities as playing ping-pong or smoking are incidental to employment, while injuries associated with the equally sanctioned activity of eating lunch are not.” Id., 795, citing McNamara, supra, and Puffin v. General Electric, 132 Conn. 279 (1945). The Court remanded the case to determine if the claimant had satisfied the second part of the three-faceted “in the course of the employment” test by proving that, at the time of his injury, he was at a place where he reasonably may have been, i.e., that the employer had approved or acquiesced in his presence on an out-of-service bus during his lunch break. Mazzone, supra, 796.

The philosophy adopted by the Court in Mazzone in analyzing the actions of that claimant on his lunch break favors a finding of compensability when applied to the circumstances of the instant case. See also, Kish v. Nursing & Home Care, Inc., 248 Conn. 379 (1999). In her Finding and Dismissal, the trier referred to the testimony of the claimant and two of her supervisors, each of whom was familiar with the claimant’s habit of walking to Jonathan’s at lunchtime. None of them indicated in any way that the university objected to the claimant’s normal midday routine. The claimant also requested in her Motion to Correct the addition of findings that Jonathan’s is the closest facility to the Whetten Center at which lunch may be purchased, and that the claimant and her supervisor walked to Jonathan’s for lunch two or three days per week. The trier denied these corrections, not on the ground that she found those assertions to be untrue, but because these facts were “irrelevant,” in her opinion.

We disagree with the trier’s assessment. Each of those facts, if accepted, would tend to show that the claimant was in a place she could reasonably have been when she suffered her injury. Although this board cannot make factual findings regarding the credibility of testimony, even if it is apparently uncontradicted, these facts if true would demonstrate that the employer had acquiesced to the claimant’s lunchtime walks across campus, and that it was reasonable for the claimant to obtain hot food at Jonathan’s restaurant. Mazzone, supra, 796; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). Thus, the claimant would have satisfied the three-prong “in the course of the employment” test regarding the time, place and circumstances of her accident, and her injury would be compensable under the Workers’ Compensation Act.

We hold that the claimant’s injury occurred on the employer’s premises as a matter of law, and thus, in accordance with Mazzone, supra, her fall took place within the period of her employment, and while she was doing something incidental to her employment, i.e., obtaining her lunch. In light of Mazzone, this matter must be remanded to the trier for reconsideration of the claimant’s requested corrections insofar as they tend to establish that she was at a place she could reasonably have been (based on employer approval or acquiescence) at the time of her injury. If the trier finds that the testimony of the witnesses cited in the Motion to Correct is credible, then she must find this injury compensable under § 31-284 C.G.S.

The trial commissioner’s decision is hereby reversed, and remanded for further proceedings in accordance with this opinion.

Commissioner Stephen B. Delaney concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. I would affirm the trial commissioner’s decision, as I agree with her conclusion that this claimant, given her particular employment duties, was no longer on her employer’s premises when she fell. The circumstances of this case more closely resemble those of Spatafore v. Yale University, 239 Conn. 408 (1996), and (especially) Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 1292 CRD-3-31-9 (March 18, 1993), than do they resemble Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997). In Renckowski, supra, the claimant left the premises of Yale University during a paid coffee break in order to obtain a refreshment at Naples Pizza, an adjacent restaurant owned by the university. She fell on the stairs of Naples Pizza, which were not controlled or possessed by Yale, and sought compensation benefits. Although she was injured on a paid break, regularly got her coffee at Naples Pizza, and her employer acquiesced to the activity, the claimant still failed in her attempt to obtain benefits under Chapter 568. Because the injury occurred off the employer’s premises, the claimant had to show that she was reasonably fulfilling the duties of her employment or doing something incidental to it. Id., 50-51. Personal comfort activities are seldom considered to be in the course of one’s employment when they occur off the employer’s premises. Id., 52. The claimant in Renckowski was unable to meet that burden, and thus this board ruled that her workers’ compensation claim should have been denied. Id., 53.

This case warrants the same result. The claimant was injured while walking to a restaurant that is open to the general public, while crossing a street that is also open to the general public. She was on an unpaid lunch break, and was free to go wherever she wanted during that time. As was the case in Renckowski, supra, the fact that the employer may have acquiesced in her lunchtime walks to Jonathan’s is irrelevant. The claimant’s job did not require her to roam the entire UConn campus, and for the purposes of that job, she was no longer on the employer’s premises when she was injured. I disagree with the majority’s opinion that we should adopt the expansive definition of “premises” suggested in Warren’s Case, 326 Mass. 718, 97 N.E.2d 184 (1951). The sounder view is the one espoused in cases such as Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386 (1955), where the definition of “premises” for workers’ compensation purposes was limited to the building where the employee was supposed to be while performing his job duties. Though the site of the claimant’s injury may have been controlled by UConn, it was not a place she would have been while she was on the clock, and should not be considered part of the employer’s premises for the purposes of this case.

Thus, I dissent from the majority’s opinion.

1 This board administratively recognizes that “Jonathan” is the name of the UConn school mascot, a canine of the husky breed, and that the university’s athletic clubs, including the 1999 NCAA men’s basketball championship team, have adopted the nickname “Huskies.” BACK TO TEXT

2 In Warren’s Case, the claimant was hired by Springfield College to take care of its athletic equipment and lockers. While walking to the superintendent’s office to sign withholding slips and payroll forms, a student ran into the claimant, and he suffered a broken hip. Despite the fact that the papers signifying the formal commencement of employment had not yet been signed, the Supreme Judicial Court of Massachusetts held that the claimant was in the course of his employment as soon as he entered the campus. BACK TO TEXT